Mississippi Advisory Opinions October 30, 2013: AGO 2013-00433 (October 30, 2013)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Kimberly Turner

SUBJ: Elections

SBCD: 67

TEXT: Kimberly P. Turner, Esquire

Assistant Secretary of State, Elections Division

Post Office Box 136

Jackson, Mississippi 39205

Re: Majority Vote / Runoff for School Board Elections

Dear Ms. Turner:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Questions and Responses

Question One: In light of the U.S. Supreme Court's decision in Shelby County v . Holder , 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) to strike down the coverage formula that subjected Mississippi to Section 5 preclearance, are the majority vote requirements provided for in HB 877 (Chapter 470, Laws of 2009) now enforceable?

Response: No. As noted in your letter, the attempt by the Mississippi Legislature to require a majority vote / runoff requirement for the election of members of county boards of education and special municipal separate school districts was specifically objected to by the U.S. Department of Justice (DOJ) while the State of Mississippi was still subject to the preclearance requirements of the Voting Rights Act. Therefore, such provisions of HB 877 were never effectuated.

Question Two: Pursuant to Section 37-5-9, must a candidate for county school member receive a majority vote to be elected?

Response: No. As noted in your letter the U.S. Department of Justice (DOJ) specifically objected to the change by the Mississippi Legislature to go from a plurality vote provision to a majority vote / runoff provision which prevented such change from being effectuated.

Question Three: Pursuant to Section 37-7-203, must a candidate for trustee of certain municipal separate school districts receive a majority vote to be elected?

Response: Yes. Municipal school districts with added territory are subject to the provisions of Sections 37-7-203, -215 and -217. A majority vote / runoff requirement has been in effect for such school districts for many years. The effect of the passage of HB 877, the subsequent partial preclearance and partial objection thereof and the subsequent passage and preclearance of SB 2074 (Chaper 516, Laws of 2012) is that the election of trustees of municipal separate school districts with added territory are to be conducted by the appropriate county election commission and are to be held on the first Tuesday after the first Monday in November and, if a runoff is necessary, it is to be held three (3) weeks after the election instead of two (2) weeks as previously provided. The attempt by the Mississippi Legislature to change from a plurality vote requirement to a majority vote / runoff requirement was only for county boards of education subject to the provisions of Section 37-5-9 and for special municipal separate school districts subject to the provisions of Section 37-7-711.

Question Four: Pursuant to Section 37-7-711, must a candidate for trustee of special municipal school districts receive a majority vote to be elected?

Response: No. Section 37-7-711 has for many years provided that "(t)he candidate in each election who receives the highest number of votes cast in the election shall be declared to have been elected." DOJ's specific objection to the majority vote / runoff provisions in HB 877 prevented such change from being effectuated.

Background and Legal Analysis

You note that by Chapter 470 (HB 877) (2009), the Mississippi Legislature amended certain statutes that provide for the election of school board members to require that if no candidate receives a majority of the votes cast in an election, a runoff must be conducted.

As stated in your letter, at the time of the enactment of HB 877 in 2009, the State of Mississippi was a covered jurisdiction subject to the preclearance requirements of Section 5 of the Voting Rights Act. The U.S. Department of Justice, by letter dated March 24, 2010, specifically objected to the majority vote / runoff requirements.

You further note that on June 25, 2013 the U.S. Supreme Court in Shelby County Alabama v . Holder, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013) ruled that the coverage formula in Section 4(b) of the Voting Rights Act of 1965, which subjected Mississippi to the Section 5 preclearance requirement, was unconstitutional.

We recently addressed the specific question of whether Section 37-5-9 authorizes or requires a runoff election for membership on a county board of education. MS AG Op., Hadskey (October 28, 2013). In Hadskey we said:

We are of the opinion that any objections to legislation by the U.S. Department of Justice pursuant to the preclearance requirements of Section 5 of the Voting Rights Act prior to the decision in Shelby County are valid and prevent such legislation from being effectuated.

Some have argued that in Shelby County the Court held that the coverage formula in Section 4(b) was unconstitutional as of the time that Congress last reauthorized the Voting Rights Act of 1965 and that therefore, any objection interposed by the U.S. Department of Justice from and after the 2006 reauthorization is of no effect.

This argument is clearly contrary to what the Court has said.

In Northwest Austin Municipal Utility District v . Holder, 557 U.S. 193 (2009) the Court had before it the 2006 reauthorization and refused to rule on its constitutionality. The Court said:

Congress reauthorized the Act in 1970 (for 5 years), 1975 (for 7 years), and 1982 (for 25 years). The coverage formula remained the same, based on the use of voting-eligibility tests and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972. 42 U.S.C. § 1973b(b). We upheld each of these reauthorizations against constitutional challenges, finding that circumstances continued to justify the provisions. Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); City of Rome v. United States , 446 U.S. 156, 100 S.Ct. 1548, 64 L.Ed.2d 119 (1980); Lopez v. Monterey County , 525 U.S. 266, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999). Most recently, in 2006, Congress extended § 5 for yet another 25 years. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577. The 2006 Act retained 1972 as the last baseline year for triggering coverage under § 5. It is that latest extension that is now before us. (Emphasis added)

More than 40 years ago, this Court concluded that "exceptional conditions" prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. Katzenbach, 383 U.S., at 334, 86 S.Ct. 803. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements. (Emphasis added)

In explaining the difficulty of striking down an Act of Congress and describing it as "the gravest and most delicate duty that the Court is called on to perform, " the Court in Shelby County, referenced its decision in Northwest Austin, and said:

That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare Section 4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance. (Emphasis added)

While the Court criticized the coverage formula that Congress reauthorized in 2006 it specifically declined to rule on the constitutionality of such reauthorization including Section 4(b), until its ruling in Shelby County.

Had the Court held that the coverage formula was unconstitutional when Congress reauthorized it in 2006, it would not have said it was declaring the coverage formula unconstitutional today, the date of the decision. It is clear from the above quoted language that, while the Court questioned the constitutionality of the 2006 reauthorizaton, it avoided declaring Section 4(b) unconstitutional until it made its decision in Shelby County on June 25, 2013. The language used by the Court is a clear indication that it did not view the decision as being retroactive. Therefore, since the U.S. Department of Justice interposed its specific objection to the majority vote/runoff requirement on March 24, 2010, such requirement never became effective.

For your information, we are enclosing a copy of Hadskey in its entirety.

Conclusion

The effect of the passage of HB 877 (Chapter 470, Laws of 2009) and the subsequent partial preclearance and partial objection by DO J, is that the election of candidates for membership on county boards of education and boards of trustees of special municipal separate school districts continues to be by a plurality vote as opposed to a majority vote.

With the additional passage and preclearance of SB 2074 (Chapter 516, Laws of 2012), the election of candidates for membership on the boards of trustees of municipal separate school districts with added territory are to be conducted by the appropriate county election commission. Runoffs are required if no candidate receives a majority of the votes, but such runoffs are now to be conducted three (3) weeks after the election instead of two (2) weeks as previously provided.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.